Abbey/Land LLC v. Interstate Mech., Inc., No. DA 14–0199.

• Docket Nº: No. DA 14–0199.
• Citation: 345 P.3d 1032, 378 Mont. 372, 2015 MT 77
• Case Date: March 10, 2015
• Court: United States State Supreme Court of Montana

378 Mont. 372
345 P.3d 1032
2015 MT 77

ABBEY/LAND LLC, a Montana limited liability company, Plaintiff and Appellee
v.
INTERSTATE MECHANICAL, INC., et al., Defendants.

No. DA 14–0199.

Supreme Court of Montana.

Submitted on Briefs Feb. 4, 2015.
Decided March 10, 2015.

345 P.3d 1032

For Proposed Intervenor James River Insurance Company: Robert K. Baldwin, Benjamin J. Alke, Goetz, Baldwin & Geddes, P.C., Bozeman, Montana.

For Appellee Abbey/Land, LLC: George B. Best, Best & Westover Law Office, Kalispell, Montana Jon E. Cushman, Cushman Law Offices, P.C., Olympia, Washington.

For Glacier Construction Partner, LLC: William K. VanCanagan, Trent N. Walker, J.R. Casillas, Datsopoulos, McDonald & Lind, P.C., Missoula, Montana.

Opinion

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

378 Mont. 373

¶ 1 James River Insurance Company, proposed intervenor in this action, appeals from the District Court's entry of final judgment on March 17, 2014. We reverse and remand for further proceedings.

345 P.3d 1033

BACKGROUND

¶ 2 This action is one of several involving disputes arising from the construction of a large house on Shelter Island, located in Flathead Lake, Montana.¹ There are no stipulated facts, no factual findings by the District Court, and the parties do not agree on several factual issues. Therefore, nothing in this Opinion should be taken as a finding or a determination of disputed fact.

¶ 3 An individual named Donald Abbey formed Abbey/Land LLC, as its sole member, to purchase Shelter Island in 2001. When Abbey/Land fell into disputes with contractors who were working to build a large house on the island, Donald Abbey formed Glacier Construction Partners LLC to handle the contracting for construction of the house. Again Donald Abbey was the sole member of the Glacier LLC, and he signed the Abbey/Land–Glacier construction contract on behalf of each entity. Glacier entered a $1.4 million contract with Interstate Mechanical, Inc. for the design and installation of the plumbing and heating-cooling system for the house. Subsequent change orders increased the value of that contract by approximately $1 million.

¶ 4 In 2009, disputes arose between Interstate and Glacier. In July

378 Mont. 374

2009 Interstate initiated an arbitration action to recover payments that it claimed as a result of its work on the house project. In September 2009 Abbey/ Land and Glacier, as plaintiffs, filed the current action for damages in Montana District Court in Flathead County against Interstate and other entities involved in the house project.

¶ 5 Subsequently Glacier asserted counterclaims in the Interstate arbitration proceeding, and in January 2011, Glacier obtained a positive arbitration award against Interstate of slightly over $400,000. In September 2011, Abbey/Land filed an amended complaint in the Flathead County action, dismissing its sister entity Glacier as a plaintiff and naming it as a defendant. Glacier then tendered the Abbey/Land claims to its comprehensive general liability insurer, James River. James River refused to provide defense or indemnity, asserting that the claims-made policy it issued to Glacier did not provide coverage.

¶ 6 In May 2013, Glacier and Abbey/Land settled the Flathead County action as between themselves.² The settlement required Glacier to confess to a $12 million judgment in favor of Abbey/Land and to assign to Abbey/Land all its rights against various insurers, including James River.

¶ 7 In August 2013, James River moved to intervene in the Flathead County action for the limited purpose of challenging the reasonableness of the $12 million confessed judgment against Glacier and in favor of Abbey/Land. James River requested that it be allowed “to contest the reasonableness of the confession as it is the result of impermissible collusion between Plaintiff Abbey/Land LLC and Defendant Glacier, who are both owned and controlled by Mr. Donald G. Abbey.” The parties and James River briefed their positions on the motion to intervene, and in the meanwhile Abbey/Land or Glacier or both entered settlements with all other parties, including several other insurers who had moved to intervene to challenge the confessed judgment. The District Court never ruled on James River's motion to intervene and never ruled upon the issues that James River raised concerning the reasonableness of the confessed judgment.

¶ 8 On March 17, 2014, the...